openQRM Enterprise Server and Client Licenses Agreement

(1) This openQRM Enterprise Server and Client License Agreement
(“Agreement”) is by and between OPENQRM AUSTRALIA PTY LTD,
1 Ransley St, Penrith NSW 2750 Australia and the Customer
as identified on the Order Form on the use of openQRM Software.
(2) openQRM Software is a client-server-based platform to manage and
automate complete Datacenter Workflows.
(3) This Agreement and its annexes shall form the entire Agreement.
Conflicting or deviating Customer conditions do not apply, even if
OPENQRM AUSTRALIA PTY LTD grants licenses in full knowledge of
Customer’s general terms and conditions.

1.
Definitions
For the purpose of this Agreement, the following terms shall have the
respective meanings below:
„Client“ means a physical Computer System which is integrated into and
managed by an openQRM “Server”.
“Order Form“ means the applicable OPENQRM AUSTRALIA PTY LTD paper
based or electronic order form document.
“Server” means each a physical Computer System or a Virtual Machine
which actively or passively (in case of a High-availability Setup with two or
more Servers) runs the openQRM Base Software providing the openQRM
Management User Interface. The openQRM “Server” manages “Clients”.
“Software“ means the program code of openQRM Enterprise Software that
consists of Server Software and Client Software in any form as described in
the Order Form and the Software Description, all updates, as well as all
documentation linked to the program in question, which are licensed
under this Agreement. It is immaterial whether the relevant program code
is independently executable or is only a subroutine, a non-standalone
program module or a comparable utility program.
“Updates” means patches or releases for maintenance purposes and may
include non-significant improvements or functional supplements (e.g.
additional drivers).

2.
Offers and Contract
(1) Customer may order the Server and/or Client Licenses via an Order
Form that is provided for download and electronically on the relevant
website of openQRM Enterprise. The submittance of an Order Form by the
Customer to OPENQRM AUSTRALIA PTY LTD shall be considered a binding
offer on the part of the Customer.
-1(2) The contract is concluded upon the receipt of an electronic order
confirmation of OPENQRM AUSTRALIA PTY LTD (e.g. via eMail) by the
Costumer that contains a link to the download area of the relevant website
of OPENQRM AUSTRALIA PTY LTD.

3.
Scope and Parts of the Agreement
This Agreement governs the licensing of openQRM Enterprise Software
and is subject to the terms and conditions of this Agreement.
Integral parts of this Agreement by reference thereto are in the following
order

4.
– Order Form
– this Agreement
– Software Description and
– Price List, as amended.

Grant of Rights
(1) Server License – OPENQRM AUSTRALIA PTY LTD hereby grants to
Customer the worldwide, non-exclusive, non-transferable right, without
limitation in time, to use – especially to copy, install and run the Server
Software – on the number of Servers licensed and to revise, modify or edit
the Software for the purposes described in the Software Description,
subject to the payment of the agreed one-time Server License fee and to
the terms and conditions of this Agreement.
(2) Client License – If the Customer wants to install and run the Client
Software on a Client, Client Licenses must be acquired. Customer may
simultaneously install and run the Client Software on the number of
Clients corresponding to the number of paid and valid Client Licenses.
(3) It is explicitly prohibited to revise, modify or edit the Software in order
to circumvent or in any other form manipulate a license check.
(4) Unless specified in this Agreement no other rights to use or exploit the
Software are granted to the Customer. Customer has, in particular, no
right to sell, lease, let, sublicense or to distribute the Software or modify,
edit or revise the Software in any way.
(5) Insofar as openQRM Enterprise provides the Customer with third party
software, specific terms and conditions of the respective licensors may
apply to the use of such software.

5.
Delivery Software is made available for download at the download area of the
relevant website of OPENQRM AUSTRALIA PTY LTD.

6.
Audit Rights
Customer undertakes to allow OPENQRM AUSTRALIA PTY LTD or an agent of
OPENQRM AUSTRALIA PTY LTD to audit whether Customer’s use of the
Software is consistent with the rights to Customer herein upon request by
OPENQRM AUSTRALIA PTY LTD and provided there is a legitimate interest
therein. Customer will give full co-operation to OPENQRM AUSTRALIA PTY LTD
or its agent carrying out such audit. Customer shall bear the costs of the
audit, provided that the audit determines that Customer has underpaid
fees for the period audited in the excess of five percent (5%) of the proper
amount owed to OPENQRM AUSTRALIA PTY LTD.

7.
License Fees
(1) Customer has to pay a one-time license fee for each Server License
and the fees for the Client Licenses as set forth in the relevant Price List.
Unless otherwise stated, all prices are net prices and subject to value
added tax at the statutory rate.
(2) If an Audit as set forth in Section 6 determines that Customer has at
any time of the audited period run the Software on Servers or Clients that
exceed the maximum number of Server or Client licenses granted to
Customer under this Agreement, OPENQRM AUSTRALIA PTY LTD may charge
the applicable additional license fees covering so arising at the rates in the
relevant Price List as from the first date of the respective exceeding use.
Additional Server and Client Licenses shall be deemed to be granted on
full payment by the Customer of the applicable additional license fees.
(3) License fees and other charges from OPENQRM AUSTRALIA PTY LTD are
due when invoiced and payable within 14 calendar days of the receipt of
invoice by the Customer without deduction on the account stated in the
invoice. In case of a delay in payment, OPENQRM AUSTRALIA PTY LTD is
entitled to charge interest on arrears at 8 %-points (eight percentage
points) above the base interest rate.

8.
Term and Termination of Client Licenses
(1) The term of a Client License starts with the activation of the respective
Client License by openQRM Enterprise and expires automatically at the
end of the relevant paid license period, without notice.
(2) The right to terminate a Client License for cause remains unaffected. A
reason, which entitles OPENQRM AUSTRALIA PTY LTD to a termination for
cause, is given in particular if Customer (a) fails to perform any of its
-3material contractual obligations, in particular makes use of the Software in
breach of this Agreement, and, provided that where such breach is
capable of remedy, fails to remedy such breach within 30 days of being
notified of such breach by OPENQRM AUSTRALIA PTY LTD; or (b) files a
petition in insolvency or has such a petition filed against the Customer
(which petition is not discharged within 30 days after filing) or is subject to
an insolvency proceeding or a proceeding giving protection against
creditors.

9.
Warranty
(1) OPENQRM AUSTRALIA PTY LTD warrants that the Software is substantially
in accordance with the specifications as set forth in the Software
Description and free from third party rights, which prevent the use of the
Software in accordance with this Agreement.
(2) Precondition for any warranty claim of the Customer is Customer’s full
compliance with all requirements regarding inspection and objection of the
Software provided for in Section 377 HGB (German Commercial Code).
(3) Rights in case of defects shall be excluded in the case of minor or
immaterial deviations from the specifications or in the case of just slight
impairment of use. Material defects and defects of title shall be remedied
by OPENQRM AUSTRALIA PTY LTD in reasonable time after being reported to
OPENQRM AUSTRALIA PTY LTD. Defects shall be remedied by making free
subsequent repairs or a free substitute delivery, at OPENQRM AUSTRALIA PTY
LTD sole option, in particular by supplying, transmitting or providing
an Update or by notification of a work-around.
(4) Defects must be notified in writing or electronically (e.g. via email) with
a comprehensible description of the error symptoms, as far as possible
evidenced by written recordings, hard copies or other documents
demonstrating the defects. The notification of the defect should enable
the reproduction of the defect. This shall not affect the statutory obligation
of OPENQRM AUSTRALIA PTY LTD to inspect and notify defects.
(5) Updates are provided at OPENQRM AUSTRALIA PTY LTD’s sole discretion to
the Customers for downloading from the relevant website. OPENQRM AUSTRALIA
PTY LTD will inform Customer in written form or electronically
(e.g. via E-Mail) about new updates that are ready for downloading and
will provide Customer with relevant access data required for logging onto
the website, if necessary. Instead of an opportunity to download Updates,
OPENQRM AUSTRALIA PTY LTD may provide Updates to the Licensee on a
suitable data carrier.
(6) OPENQRM AUSTRALIA PTY LTD does not accept any warranty claims for
any defects caused by revision, modification or editing of the Software or
improper, incorrect or unauthorized use of the Software, especially in the
case of improper, incorrect or unauthorized combination with other
software or hardware.(7) OPENQRM AUSTRALIA PTY LTD does also not accept
warranty claims, if the defect is caused by hardware or software that has not been supplied by
OPENQRM AUSTRALIA PTY LTD or if Customer does not make use or does
make improper or incorrect use of Updates provided by OPENQRM AUSTRALIA PTY
LTD.
(8) Any warranty shall be valid for a period of (12) twelve months as of the
date the Customer was granted the right to use the Software according to
Section 4.1 of this Agreement.
(9) Any claims for damages are subject to the limitations set forth under
Section 10 of this Agreement.

10.
Liability
(1) OPENQRM AUSTRALIA PTY LTD shall be liable under the statutory
provisions if Customer raises claims for damages based on a wilful act or
gross negligence.
(2) In the case OPENQRM AUSTRALIA PTY LTD is blamed for a minor negligent
breach of a principal contractual duty, the fulfilment of which alone makes
proper implementation of the contract possible, and the breach of which
jeopardises the achievement of the contractual object, and on observance
of which the Customer may duly rely, liability of OPENQRM AUSTRALIA PTY LTD
in damages will be limited to the predictable, typically occurring
damage.
(3) Liability for loss of data is limited to the typical recovery expense that
would have been incurred in case of a regular and risk-adequate storage
of data on backup copies by the customer.
(4) Liability for culpable loss of life, bodily injury or impaired health and
liability under the Product Liability Act remains unaffected.
(5) Insofar as the liability of OPENQRM AUSTRALIA PTY LTD is limited, this also
applies to the personal liability of OPENQRM AUSTRALIA PTY LTD’s employees,
staff members, representatives and servants.
(6) Unless stipulated otherwise above, any liability of OPENQRM AUSTRALIA
PTY LTD is excluded.
11.
Confidentiality
Each Party will treat as confidential beyond the license term with respect
to third parties all items of information, business transactions, and
documents that become known to the party in connection with the
execution of this Agreement and that have been classified as confidential
or by its nature are considered to be confidential (“Confidential
Information”). The use of such information shall be limited solely to the
scope of this Agreement. A Party will not disclose Confidential Information
-5to any third person except, (a) with the written consent of the other Party,
(b) if and to the extent required to do so by Law, (c) to its financial or legal
advisers in confidence for the purpose of obtaining advice. The Parties will
also impose this obligation on their employees and any third parties that
have been involved. The obligation to maintain confidentiality shall not
apply to information that the Party has proven to have received or to
receive lawfully from third parties or that was generally known before the
offer was awarded, or has subsequently become known without violating
the obligations contained in this Agreement, developed independently of
the other Party without using the knowledge gained from this contractual
relationship.

12.
Final Provisions
(1) All agreements adding to or changing this Agreement will be recorded
in writing.
(2) Details or specifications of the Software on websites, in prospectuses,
in the Software Description or in other documents only serve as a
description and do not constitute a guarantee, in particular they constitute
no guarantee of condition. Guarantees require express confirmation by
OPENQRM AUSTRALIA PTY LTD in writing.
(3) Where this Agreement stipulates the written form, this exclusively
means the written form;
(A) If a written form is required by law, the certificate must be signed by the
exhibitor himself by means of a signature or a notarized hand sign.
(B) A contract must be signed by the parties on the same document. If several
identical documents are included in the contract, it is sufficient for each party to
sign the document intended for the other party.
(C) The written form can be replaced by the electronic form, unless otherwise
stipulated by law.
(D) The written form is replaced by the notarial certification.
(4) OPENQRM AUSTRALIA PTY LTD shall have the right, to make use of
subcontractors as long as such use is not contrary to the legitimate
interests of the Customer.
(5) Customer has no right to retention or to set off, unless the
counterclaim is legally established or undisputed.
(6) The contractual relationship of the Parties is governed by German law.
Exclusive venue is Cologne, Germany. However, OPENQRM AUSTRALIA PTY LTD
is entitled to sue the Customer at Customer’s place of business.
The latter does not apply if a deviant, compulsive statutory exclusive
venue exists.
(7) Should provisions of this Agreement be or become invalid or should a
loophole emerge in them, the validity of the other provisions will not be
affected thereby. The invalid provisions or loophole in this Agreement will
be replaced by an appropriate arrangement that comes as close as
possible to what the Parties appear to have intended according to the
spirit and purpose of the contract.

Sydney, 27 July, 2020
Copyright 2020 by OPENQRM AUSTRALIA PTY LTD